Wednesday, June 23, 2010

Custody, Prison, and Pretense

By Sherry F. Colb

In my FindLaw column for this week, I discuss the Supreme Court's decision in Maryland v. Shatzer. The respondent in the case, Michael Blaine Shatzer, Sr., was convicted of sexually abusing his three-year-old son. He challenged the conviction on the ground that the trial judge erroneously ruled his confession admissible, in violation of his right to counsel. His argument was that he gave his confession in response to an interrogation that should never have taken place. Under Edwards v. Arizona, a suspect in custody who asks for a lawyer may not be further interrogated by law enforcement officials unless and until the suspect has an attorney with him. This means that if the police come back to the suspect at a later point, while he is still in custody, and seek to interrogate him, any responses to that interrogation will be suppressed (warnings and waiver notwithstanding) unless the suspect himself initiated the conversation with the police.

With this law in the background, lower courts decided on their own to recognize a "break in custody" exception to the Edwards rule. The exception permitted police to re-approach a suspect in custody who had previously invoked counsel if there had been a "break in custody" between the prior invocation of counsel and the current approach. How might this exception apply to Shatzer?

In Shatzer's case, the police approached him two-and-a-half year after he had invoked his right to counsel, but he had been incarcerated in prison (for a different sexual crime) in between the two interviews. The Supreme Court thus faced the following two questions: Is there a "break in custody" exception to Edwards, as lower courts have assumed? And if there is such an exception, does it apply even when the suspect has never left the penitentiary? The Court answered "yes" to both questions and found that because Shatzer was living in the general prison population (rather than being held separately for interrogation) for more than two weeks, the Edwards presumption did not apply, and the police could re-approach him with Miranda warnings.

In my column, I discuss the Court's reasoning and conclude that the outcome may be correct, but the reasoning is flawed. Specifically, I propose that the notion that a person incarcerated in prison is free of custody -- able to socialize and get advice from friends, as the Court suggests -- blinks reality. In this post, I want to suggest that the Court's indulgence in such fiction is not unique to the Miranda context.

Another area in which one can find fiction deployed is the death penalty context. There, the Supreme Court has repeatedly announced its fidelity to the principle that the government may not impose "cruel and unusual punishments" and that, consequently, executing people in a manner that is torturous or extremely painful violates the Eighth Amendment. Yet the Court has upheld the administration of lethal injection, as practiced in most states, as a form of execution.

"But isn't lethal injection the most humane method available?," readers might object. This is many people's reaction to the charge that lethal injection is cruel. We imagine a person lying on a gurney and receiving an injection that makes him fall asleep forever. What could be more humane? Indeed, isn't this the sort of death that people seeking physician assistance in dying pray for?

That depends on what is injected into the person's veins. If we gave the prisoner an overdose of heroin to end his life, that death would be humane. Barring the use of a recreationally-abused drug, if we gave the prisoner an overdose of a barbiturate -- a sedative -- that death too would be humane (to the extent that any unwanted death can be characterized as "humane"). The lethal injection in most states, however, includes administration of three drugs in succession -- first a barbiturate, second a paralytic, and third a drug that causes cardiac arrest. It is useful to know that everyone concedes that if the first drug -- the barbiturate -- were omitted, the lethal injection would be excruciatingly painful, involving both suffocation (because of the paralytic) and then cardiac arrest (which causes great pain to a conscious patient). So the "humaneness" of lethal injection, as administered in most states, turns entirely on proper administration of the first drug.

The problem is that the people who mix the drug (by following instructions) are not trained experts, and there is therefore sometimes insufficient barbiturate administered to the prisoner to last until the prisoner's death. Once the second drug -- a paralytic -- is administered, however, the prisoner who regains consciousness is unable to speak or move or otherwise register the fact that he is now conscious. Imagine becoming conscious during surgery while remaining unable to speak or even move your face -- the surgeon would have no idea that you can feel the scalpel cutting into your body. The paralytic can thus cause the sensation of suffocation without allowing the prisoner to evidence that sensation to those witnessing his execution.

The third drug then causes cardiac arrest, which eventually results in death but in the interim is terribly painful for a conscious person. Yet the second drug continues to make movement -- and thus complaint or even grimacing -- impossible. The prisoner may thus die with a peaceful look on his face while he experiences invisible agony.

In his opinion in Baze v. Rees,Chief Justice Roberts does not deny that this may happen to prisoners on occasion but says nonetheless that "Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States," adding that "[i]f administered as intended, that procedure will result in a painless death." But "believing" something is humane does not make it so, and the "intent" of those who designed the procedure has little bearing on what occurs when predictable (but undetectable) errors are made in carrying out the complicated protocol. To the argument that the paralytic serves no therapeutic purpose, the Court responds in part that the paralytic helps preserve the "dignity" of the proceedings by preventing convulsions and involuntary movements by the condemned. But how "dignified" is it to die in excruciating pain without the ability to cry out?

It seems, from Chief Justice Roberts's discussion of lethal injection and from the Court's suggestion in Shatzer that prisoners in a penitentiary are not in "custody" (because they can supposedly interact with friends and get advice), that as long as the Justices can close their eyes and pretend something false is true, that is enough to satisfy their legal and moral obligations. And the fact that few Justices see the inside of a prison -- and no one witnesses the pain of a person undergoing execution -- simply helps the illusion along.

In marveling at people's capacity for self-deception and willingness to participate in cruelty that is carefully hidden from view, I cannot help but note the obvious implications for people's consumption of animal flesh and secretions and the belief in the myths of "humane treatment" and "humane slaughter" that made that consumption possible. I will leave further discussion of that implication for another day, but it does bear mention here. To paraphrase Upton Sinclair, it may be difficult to get people to understand something when their ability to sleep at night depends on their not understanding it.

1 comment:

I think in some ways, you're getting at the kind of "empathy" we should want in our judges. Without some sort of grounding in reality or unique perspective, results can be perverse or worse.

A quick example comes to mind:

The Court ruled -- rather ridiculously, imo -- in Ledbetter that women should in effect be able to pry into that first moment of discrimination. Somehow, they should obtain special fly-on-the-wall power and gain access in some way to the key moment the illegal act took place. Or they should have incredible powers of assessment and instantly realize they’re getting paid less than male co-workers.

Well, tell that to anybody who works in an office, and the look would be incredulous. "How on earth is that possible? I rarely even see my friggin' boss. And I’ll be fired if I talk about salary with co-workers."

I suppose a formalist judge might say he had no choice in the matter -- i.e., no matter what I think about real-world impact, I have to rule within the limited parameters of the text. That's fine as far as it goes. But the point is that we shouldn't want that kind of judge. We should require real-world empathy as one trait, so rulings at least make sense to citizens.

I think this sort of gets at Souter's commencement speech at Harvard as well. He didn't call it empathy, but he seemed to speak in that spirit -- relating to how society's norms have influenced the courts (and that they should).